Robin Gross Seeks International IP Justice

The ever-growing rift between the U.S. and Europe on the question of
war against Iraq may be just the tip of the iceberg of a full-blown
schism. Indeed, divisiveness in the UN and in NATO may be a harbinger of a
time when Europe and the rest of the world starts to really question
whether adhering to the U.S. line is really the best course of action.

Just as France and Germany are actively resisting the American push for
war, countries around Europe are starting to question some U.S. requests
that the European Union has accepted wholesale. A case in point, the European Union Copyright
Directive, passed in 2001, requires member countries to pass laws
similar to the U.S.'s Digital Millenium Copyright Act, including the
controversial anticircumvention clause.

The EU Copyright Directive is just one thread in the fabric the
U.S. has been weaving around the world. According to Robin Gross, a former
intellectual property lawyer at the Electronic Frontier Foundation and now
the director of IPJustice, the
U.S. pressures foreign nations to

clamp down on copyright offenders, and pay (from a local
perspective) huge royalties;

pass laws increasing the scope and terms of copyright and patent
protection for American and European publishers;

and even, as in the case of the U.S. grant of most-favored nation
trading status to China in 1994, requiring nations to make copyright
violation a capital offense in order to receive economic benefits.

But there are glimmers of hope. On January 31 of this year, the Finnish
committee considering the EUCD legislation found the proposed law went
too far in violating legitimate consumer behavior. The committee sent
the proposal, which specified a two-year jail term for circumvention
violations, back to its drafters for another try. "We really can make a
difference," said the chairman of Electronic Frontier Finland,
the main organization lobbying against the law.

As an attorney at EFF, Gross traveled around the world talking to
various groups about the ways in which intellectual property law was being
expanded in their countries. "Everywhere I went people would express
this frustration at the lack of organized effort in their country to
battle against the expansion of intellectual property laws. There are lots
of groups in lots of countries but they're all very fragmented. They would
be so much more powerful if they could join together, work together, share
knowledge, share resources. What I'm trying to do here is build coalitions
among these various groups, connect the people together--the librarians in
London and the hackers in Hungary."

On February 25, 2003 Gross will release a document called
"Principles of Intellectual Property Justice," which will
provide a baseline to work toward for groups in each country. The document
will espouse the idea that consumers should be allowed to make
personal-use, private copies of work, that fair-use rights in publications
should be protected, and so forth. "It shouldn't matter which country
you're in," Gross says, "if it's not hurting the artist to make
a personal-use, private copy, it should be something that is lawful. We
want to guide organizers and lawmakers toward an agenda of freedom of
expression against the expansion of intellectual property laws."

Richard Koman: What is the European Union Copyright Directive
and where does it stand?

Robin Gross: There's a tremendous push right now by Hollywood to
pass anticircumvention laws in different counties. The EUCD is very much
like the U.S. Digital Millenium Copyright Act in that it outlaws acts of
circumvention even if it's your own property. Also the directive outlaws
providing tools or information that would enable someone else to
circumvent controls, also similar to the DMCA in the U.S. There's been
quite a lot of controversy about the anticircumvention provisions because
these laws prevent scientists from publishing their research and companies
from competing in the market for devices that can interact with digital
entertainment. The European Union Copyright Directive was supposed to have
been implemented last month, and only two countries--Denmark and
Greece--have passed legislation that would comply with the copyright
directive. A number of countries right now have this legislation before
their legislatures. It's a very hot topic and there's a lot of dissent in
these countries.

Koman: Which countries are the most resistent to the directive?

Gross: Finland recently rejected national legislation to
implement the EUCD due to an overwhelming grassroots opposition. Led by
Electronic Frontier Finland, Finnish citizens convinced the legislative
committee chairman to withdraw the bill because it criminalized so much
legitimate consumer circumvention.

Germany is also presently considering legislation similar to the DMCA.
Through German activists at Privatkopie, IP Justice submitted a statement to the German
Judicial Committee considering the bill to warn about the chilling
effect we've experienced in the U.S. since the DMCA was passed. The
German bill will be up for a vote in a few months, so the time for Germans
to contact their representative is now.

Koman: How much sympathy is there really in the
legislatures in these countries, for as active as groups like EFF were in
the 1990s, Congress still overwhelmingly passed the DMCA and the Copyright
Extension.

Gross: The legislatures in these countries and in the
U.S. are up against the U.S. copyright industry. They're extremely
powerful financially and in terms of getting their agenda pushed in
various legislatures. So that's one big obstacle people have to confront:
the sheer power, the money, and the influence of the U.S. copyright
industry. The other issue legislatures will be grappling with, much as
they have in the U.S., is that when these circumvention laws were first
introduced, Hollywood promised that they were necessary in order to
protect against copyright infringement and they promised they would only
be used as a shield for that purpose. Now that they've been passed, we're
seeing that these laws are actually very powerful tools to silence critics
and go after competitors, things that have absolutely nothing to do with
copyright infringement.

So it should come as no surprise that we've seen statements from a few
members of Congress in the last few months saying, "Hey, wait a
minute, this isn't what we thought we were passing when we passed the
DMCA." (Rep.) Zoe Lofgren (D-CA) said she had originally signed onto
the DMCA because she thought it would be used to prevent copyright
infringement, but now that she seen it in force, she's commented that it's
being used to stifle competition and innovation, and that's why she
introduced legislation that would amend some of the harshest provisions of
the DMCA and permit people to circumvent for lawful purposes.

Koman: For instance, the Lexmark case where they're
using DMCA to prosecute a competitor, Static Control Components, which is
in the business of refilling used cartridges. Lexmark printers are
equipped with a "killer chip," which prevents the cartridge from working
after the initial use. Static Control came up with a replacement chip
which essentially tricks the cartridge into thinking its never been used
before. Lexmark is using DMCA to say that Static Control is circumventing
their technology. DMCA, of course, makes circumventing technology in order
to get access to a copyrighted work illegal. Lexmark seems to be saying
that printer toner is a protected work. Or something. It's kind of hard to
understand the legal justification; in any case, it smells like what's
being protected is a company's ability to freeze aftermarket resellers out
of a very lucrative business.

Gross: Yes. That's the type of anticompetitive use
that Lofgren is referring to. Preventing competition in the printer toner
cartridge market is not about protecting against copyright infringement. There was
another case where DMCA was being used to prevent a competitor from
distributing a universal remote control for garage door openers. That's
another example of how DMCA is being abused in practice in this country,
and lawmakers around the world would be wise to stand up and pay attention
to the way its being used here and not repeat the mistakes we've made here
in terms of passing these overbroad anticircumvention laws.

Koman: Are they in fact watching what's happening in
the U.S. or simply listening to the words of the U.S. copyright
industry?

Gross: Well, there's an incredible amount of inertia
on the side of the copyright industry to get this agenda passed. It's been
in place for a number of years. In some ways, countries already have their
hands tied. The EU passed the Copyright Directive, which means the 15
member countries of the EU are required to pass this legislation. So
you're right, they want to stop and slow down and reconsider this, but
there's not a whole lot of opportunity to do that because it's been such a
rushed process up until this point. Many of these countries are obligated
to pass these laws under their treaty obligations. Unless they can pass
meaningful exemptions, I expect we will be faced with court challenges in
Europe, much as we've had in the U.S., where citizens are going to have to
challenge these laws after they've been passed based on freedom of
information and freedom of expression rights in their own national
constitutions.

Gross: That's right. That's a great example of a
country that has been willing to stand up to Hollywood. It's interesting
to note, though, that these were judges that made the ruling that Jon
bought the DVD and if he wants to watch it on his own computer that's not
controlled by the Hollywood movie studios, he's well within his rights to
do that. What that case really represented was an attempt by Hollywood to
use the judicial process to create circumvention laws in Norway, without
ever putting it before the legislature, without putting it before the
public; but, rather, simply trying to get a judicial reconstruction of an
old data theft law so that it would now apply to people who want to access
their own property.

Koman: What would the impact have been on that court
if the EU Copyright Directive were in place? Would they have been able to
come to the same decision?

Gross: It's very likely it would be outlawed in
Norway. Much of it would depend on the particular implementation in that
country. If they had explicit exemptions for reverse engineering, it's
possible that the act of creating DeCSS would have been lawful; however,
posting it to the Internet still may have been unlawful because you're not
allowed to provide tools or information to allow someone else to access
that content.

Koman: Are you looking at other regions besides
Europe?

Gross: I am concerned about other regions,
particularly Africa and other countries that are intellectual property
importers as opposed to intellectual property exporters. I am concerned
about the U.S. imposition of very broad intellectual property grants in
those countries and the effect it's going to have on the native
peoples. Are they simply going to be forced to import all this American
culture and American movies and American music at the expense of their own
culture?

Koman: How is this playing out specifically?

Gross: Take, for example, AIDS drugs that are
patented. Patent laws are national; there aren't really international
patent laws. There are international treaty obligations and different
countries agree to respect each other's patents, but it's always up to the
individual country to decide the public policy of what level of patent
protection to provide. Some countries like Brazil and India don't permit
patents on pharmaceuticals. There's a lot of pressure in terms of trade
sanctions for these countries to adopt U.S.-style patent laws that would
raise the cost of AIDS drugs and other drugs in those countries.

So you kind of have to take a step back and say, wait a minute, is this
in this country's best interest to be granting monopolies to U.S. drug
companies when their own citizens are dying from lack of access to
affordable drugs? What is actually in the best interest of that particular
country is not even part of the debate. The debate is simply, "Well you're
going to be sanctioned by the U.S. or the WTO if you don't adopt these
intellectual property rules," so these countries often have very little
choice, very little bargaining power, very little leverage against the
Western view of intellectual property and its imposition on these
countries.

Koman: So this whole area of copyright and patent
protection is part of the larger issue of globalization?

Gross: I think it is. What's going on in the
intellectual property space is part of what's going on in the world in
terms of very large multinational corporations coming in and in many cases
having more power than national governments do.

Koman: And this happens through international
organizations like WTO?

Gross: That's right. WTO is a big part of the
picture.

Koman: World Bank...

Gross: That's right. If you want loans, if you want
help from the IMF, there are all kinds of leverages where the gatekeepers
of capital or wealth, if you will, are able to require these other
countries--whether it's in trade talks or treaty obligations or just
simple financial pressure--and to pressure these countries to pass laws
that are not in their best interest.

Koman: Poor countries have a built-in interest to use
the Internet as a way to provide access to information to their citizens,
to provide books, to educate children, for people to learn about medical
conditions, drug side effects, and so on. They can't afford to buy the
books, they don't have the infrastructure to communicate with people in
other ways, so the efficiency of the Internet is very powerful. On the
other hand, the copyright industries are fearful of the Internet as a
mechanism of widespread copying and copyright infringement.

Gross: This really is quite a quandary that many are
faced with in the Internet space. On the one hand, we have this technology
that is truly revolutionary in how it can connect people from all over the
world. It's an opportunity to have more intellectual growth. On the other
hand, it does present a challenge when the traditional business models
depend upon a scarcity model of intellectual property. And now we're
moving into a world where scarcity's not a problem. These governments in
developing countries are faced with a quandary because it is such an
opportunity to share knowledge and culture with parts of the world we haven't reached before. The
opportunity is just enormous but at the same time they're faced with a lot
of pressure from the copyright industry to build walls and slow down the
transfer of information, so these countries are going to have to walk a
very careful line to be sure they watch out for the best interests of
their people. Do they want to have a vibrant public domain they can all
share and learn from together? Or do they simply want to have a system
where their information is shipped in to them from the U.S., and they need
licenses from Hollywood in order to show a movie in a school. When the
technology is there to do it at low, low cost, there's not a whole lot of
incentive to be spending these countries' resources on exorbitant
royalties.

Koman: There's just the pressure from the U.S. and the
EU...

Gross: We say "just the pressure" but the
pressure's a lot. There are a lot of levers the international community
has to pressure these countries to adopt Western intellectual property
laws

Koman: In places like China there's widespread copying
of MS Windows CDs and all kinds of CDs. Doesn't Microsoft have a
reasonable concern about that?

Gross: It's interesting that you mention China,
because the U.S. has been working very hard to get China to change their
intellectual property laws to more closely resemble U.S. laws. In fact, in
1994 when China was trying to get most-favored nation trade status, the
U.S. required China to add copyright infringement to their list of capital
punishments. And that was a requirement in order for them to trade with
us. So while we can say sure, Microsoft has an interest in having its
copyrights protected, at what cost? Should we set up systems that
encourage payment and renumeration? Absolutely. Should we put people in
jail forever or put them to death because they copied a book without
permission? That's a little extreme. But it shows the kind of power that
Hollywood has in pressuring countries to change their laws.

China had a very different copyright policy in the past. They believed
that information belonged to everyone and there wasn't a concept that one
person has the right to copyright something and claim something as their
own. [U.S. copyright law] is a very foreign concept in that country. They
have a cultural system where they share, so this [copyright infringement]
law is a tremendous change to their culture as well.